What to do after a DWI stop

We hope that you’ll never have to use any of the information here. But nobody’s perfect, and we’d be remiss if we didn’t advise you on what to do if you’re subject to a DWI stop.

Everything below is designed to help you prevent the state from acquiring the evidence it needs to convict you of DWI, such as:

Denying the state probable cause

Denying the chemical analysis of your blood

Setting up the opportunity to have your case dismissed on a Knoll motion

Please understand that there are no one-size-fits-all rules. Just about everything depends on how much you’ve had to drink, but we’ll try to cover some general guidelines below. Our DWI lawyers are always available to help if you have been charged.

What Happens During a DWI Stop

The first thing all law enforcement officers do at a DWI stop is ask for your driver’s license and registration. You’ll want to make sure you’re keeping yours clipped to the driver’s side visor overhead so that you can have it ready. Don’t keep them in the glove box. Fishing through the glove box hurts you twice. First, it could take you longer to find them, giving the officer a chance to observe you. Second, leaning over to get them out of the glove box could cause you to lose your balance, giving the officer “evidence” of impairment that can be used in court.

Don’t make casual conversation with the officer. Be polite, but avoid eye contact. (Avoiding eye contact makes it harder for the officer to testify that your eyes were red and glassy.) Officers are trained to ask you distracting questions if they suspect you’re impaired. They’re checking to see if you’re easily confused. Also, anything you say beyond the minimal “Yes, sir” and “No, sir” could give the officer grounds to say your speech was slurred.

You should always take the above steps anytime you’re stopped and you’ve had anything to drink, but from here on out, our recommendations depend on how much you have had to drink. If you know that you are clearly impaired, we recommend that you hand the officer your Driver’s Rights Card along with your license and registration. The card will do your speaking for you. However, if you think you are borderline at .08, based on how much you’ve had to drink, then handing this card to the officer will be tantamount to inviting the officer to arrest you for DWI. At this point, you need to walk a fine line between submitting to the officer’s authority without giving up your rights against self-incrimination. Remember, your goal is to avoid giving the officer the evidence needed to make a charge of DWI hold up against you in court. If you’ve done as we’ve instructed above, you’ve already started to do this by making it hard for the officer to testify that there was an odor of alcohol on you, or that you were slurring your words or had red, glassy eyes.

Next, refuse to perform any field sobriety tests. The law does not require that you perform these “tests” and all they can do is assist in establishing probable cause for your arrest. The Driver’s Rights Card tells the officer that you do not intend to perform any verbal or non-verbal field sobriety tests, also known as FSTs.

If You Do Not Use a Driver’s Rights Card

If you are not using the Driver’s Rights Card, the first clue you’ll have that the officer wants to give you a field sobriety test will come when you’re ordered out of your car. At this point you should say, “Not unless I am under arrest. You may handcuff me if you feel it is necessary. Otherwise, please return my license.” At this point, roll down your window and offer your wrists to the officer without getting out of your car. The officer may just be annoyed with you enough to do it, and if so, it’s to your advantage because officers are trained that when someone is handcuffed, they must help the person into and out of a car. By helping you out, they will be less able to testify about your coordination and walking.

Don’t presume the officer will take you at face value when you announce that you will not perform any field sobriety tests. Most will order you to perform tests anyway; you should not do it. Never perform FSTs. This applies no matter how little you’ve had to drink. Even if you end up blowing under a .08, the officer could use the FSTs in court to make a case of impairment against you. When you are ordered to perform FSTs, politely tell the officer: “On advice of counsel, I refuse. If you wish to arrest me I will cooperate fully.” Likewise, do not blow into an Alco-Sensor or any other handheld breath screening device. The only way this could harm you is if you had open containers in your car. (The result of the Alco-Sensor is admissible in court for open container charges, but not DWI.)

Will doing all this stop you from being arrested? Maybe not, but following these instructions will help you continue to lay grounds for your defense. When your case goes to court, all the officer will have is an odor of alcohol, perhaps some slurred speech or glassy eyes, and maybe poor, sloppy driving as evidence of impairment. An arrest based on just this evidence should never stand up in court unless the driving was notably bad. In this case, the officer will contend that the driving alone established probable cause. The question is if the officer really observed you driving long enough to make that claim. Often, officers don’t follow you long enough to establish a pattern of bad driving. They see one incident of swerving and jump to turn on the blue lights. It’s important to record every detail you can remember of your stop and arrest, including how long you were followed before the officer stopped you. This information should be given to your DWI attorney when you sit down to discuss the case.

If You Undergo Breath Analysis

We’ll presume that the officer is determined to give you a breath test even though you’ve denied the grounds for establishing probable cause by refusing to perform any field sobriety tests. The first thing that will happen is that you’ll be advised of your rights before blowing into the Intox EC/IR II downtown. These rights include consulting with a lawyer and having a witness present when you blow. You are allowed to call both. If they give you the old “one call” line, go ahead and protest, but to yourself, be glad – if they refuse to let you call for a witness because you’ve already called your lawyer, or vice versa, they are denying you your rights under both the United States and North Carolina constitutions.

If you reach a lawyer, be guarded in what you say. Because you are in the breath test room, there is no privilege to your side of the conversation. Therefore, don’t call your family lawyer. It could mess you up. Call an experienced DWI attorney who will know how to ask you a series of “yes-or-no” questions that will assess the situation without making you say damning things which could be overheard.

For instance, a good DWI attorney will start by determining how much you have had to drink: “Were you drinking hard liquor?” “No.” “Were you drinking beer?” “Yes.” “Did you drink more than one beer?” “Yes.” “Did you drink more than three beers?” “Yes.” “Did you drink more than five beers?” “No.” “Did you drink four beers?” “Yes.”

Your lawyer should also make sure you have called for a witness and that you wait the full 30 minutes you are entitled to for a witness to arrive. Even if you can’t get someone to agree to witness your test, don’t tell that to the breath test operator. Leave the issue open ended so that someone may be on the way and take the full 30 minutes, but avoid lying. It may be just long enough for your blood alcohol level to fall below .08, if you’re on the border.

The lawyer should also walk you through a series of questions to learn your previous legal history. He/she will ask questions like, “Have you ever been arrested for DWI before?” and “Was it within the past three years?” Without making you say anything but “yes” and “no” in front of law enforcement, the lawyer will get a pretty good picture of your condition and your legal status, because both need to be factored into the biggest decision you have to make: to blow or not to blow.

If you blow, you’ll be giving the state evidence that it can use to convict you, even if you show no outward sign of impairment. But if you don’t, you’ll lose your license for a year. Because this is a civil in nature by the DMV, you can’t get limited driving privileges until at least six months later. Whether to blow or not, also depends on how much you’ve had to drink. If you were watching your consumption, and believe that you’re a .08 or below, you may want to blow, because a skilled DWI attorney can fight a .08 in court.

However, if you think that, based on how much you’ve had to drink, you’re clearly over the limit, keep in mind some of these guidelines:

If there was someone under 18 years old in the car with you, you may not want to blow. Why? Because having a passenger under 18 years old is a grossly aggravating factor when it comes to sentencing. As such, it means that you will lose your license for a year at a minimum if you are convicted and you will be sentenced at Level One sentencing. Since blowing can only give them the evidence they need to convict you, and since you’re going to lose your license for a year anyway if you are convicted, you have nothing to lose and something to gain by not blowing. Sure, you’ll lose your license for a year just like you would have if you were convicted, but you may avoid the DWI conviction on your record.

If you have not had a DWI in the past seven years and you have a valid driver’s license, take the test. Yes, you may be giving the state the evidence it needs to convict you if the arrest stands up in court (since you did everything you could to keep the officer establishing probable cause). Even if you are convicted, you’ll be eligible for limited driving privileges and you are not looking at mandatory jail time. The alternative (to refuse to blow) means you’ll lose your license for a year.

If you have a DWI within three years, you may not want to blow. If you’re convicted you’ll lose your license for four years, and you won’t be allowed to petition for driving privileges for two years.

If you have a prior DWI within seven years but it was at least three years ago, you have a tougher choice. If you’re convicted and you have a DWI conviction within the past seven years, you will lose your license for a year, so it’s pretty much a wash with the penalty for refusing to blow.

If you were caught driving with your license revoked, you may not want to blow. The judge isn’t going to give you privileges under these circumstances, anyway.

If you blow, request an independent test after you are finished. Preferably, ask to be taken to an emergency room to have blood drawn for a blood analysis. This may take a while, possibly giving time for your blood alcohol level to drop below .08. Since the blood test can be argued in court as being more accurate than a breath test, you could win your case. You will have to pay for the blood test yourself. Nowadays most hospital emergency rooms and 24 hour prime care facilities accept credit cards. If the officers are reluctant to take you to have your blood tested, remind them that it is your right under G.S. 20-139.1.

When you request a blood test, keep one thing in mind: Do not sign a consent form offered by the officer before having your blood tested. That consent form is only needed if the state wants to test your blood. In this situation, you want to test your blood, not the state, and you don’t want the state to know the results. Therefore, do not sign the form, even if the officer says you have to sign it to have your blood tested. Likewise, don’t be fooled into signing it by being told that if you sign the form, the state will pick up the tab for the test. Yes, it will pick up the tab, but it will pick up the results, too. Finally, do not let any county paramedics or any other “official” personnel draw your blood right there at the station. You are entitled to an independent test of your blood.

Another option is to request that you be taken to another agency that has an Intox EC/IR II to be given an independent test on that machine by a third party. You will have to pay for this. Additionally, the state may refuse you access to another machine, and argue that you have no legal right to use the state’s equipment in gathering evidence in your behalf, but it costs them nothing to give you another test at a different location.

Having an independent breath test offers advantages and disadvantages. The advantage is that if the machine reads more than a .02 difference in your blood alcohol level, you may have a good case for throwing out the Intox results as being unreliable. The disadvantage is that having a second breath test denies you the opportunity to contest the accuracy of the Intox in comparison with a blood test.

After You Are Charged

If you blew over the limit or refused, but are still charged with DWI, you’ll be taken before a magistrate who will determine the conditions for your pretrial release. The magistrate will ask you some questions. When the time comes, ask to be released under your own recognizance. Chances are the magistrate will violate N.C.G.S. 15A-534 and order you held in custody. This is what you want. If you’re held in custody, you may be able to successfully file a Knoll motion that your detention was not warranted. More and more magistrates are violating this statute.

In 2006, however, the General Assembly found a way around Knoll motions. They created a procedure in N.C.G.S. 20-38.4 that tells you that even though you’re going to be held in jail, you have the right to have someone come observe you in the jail and have the right to “additional chemical analys[es].” The Implied Consent Offense Notice should be filled out in front of the magistrate, and you should always list contact people. If the magistrate or sheriff’s office refuses to let you contact the people on your list, you have a good case for the violation of your rights under Knoll.

Sooner or later you will be released, and when you are, contact your DWI attorney and start recording every detail of your arrest that you can remember. Then start planning your defense strategy. It is always in your interest to consult with an experienced DUI / DWI attorney. None of the above should be mistaken for legal advice, nor does it establish a client-attorney relationship.

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